Liability for the online activities of employees
The rapid introduction of e-mail and Internet access to the workplace has left many employers ill-equipped to deal with the abuse of these facilities and the resulting business and legal risks. The development and implementation of an Electronic Communications or eCommunications Policy should be the employer's first line of defence against risks and liability created through the online activities of employees.
What is an eCommunications Policy?
An eCommunications Policy (also known as an Acceptable Use Policy) is a policy that sets out the circumstances under which an employer's communications network may be used. It specifically lists the acceptable and unacceptable uses of that network and spells out the consequences of engaging in unacceptable uses.
eCPs are used by businesses as an instrument for controlling the use of e-mail and Internet facilities and can be extended to apply to cell phones, palmtops and other mobile media provided by the employer.
Why do you need an eCommunications Policy?
There are a number of important reasons for having a suitable eCommunications Policy in place, including:
Regaining lost productivity
Most employers would agree that loss of employee productivity through time spent surfing non-work-related web sites or on personal email is the largest downside to the provision of Internet access at work. An eCP, correctly implemented, can assist employers to better control employees' online activities. If required it can also be used to control the use of mobile media such as cell phones.
Protecting against legal liability
In South African law, under the doctrine of vicarious liability, employers can be held liable for the acts of their employees where such acts were performed "in the course and scope of their employment". This can be understood to cover situations where an employer, by allowing access to electronic media such as e-mail and the Internet, creates a risk that one or more of its employees will use this access to do something which is damaging to the interests of others.
In this context, employers are potentially liable for a variety of employees' acts, including defamation, harassment, discrimination, copyright infringement or invasion of privacy.
In order to defend a legal action based on the vicarious liability of the employer for damage caused by an employee while using workplace computer facilities, the employer will have to satisfy a court that it took all reasonable steps available to it to minimise the risk of such damage occurring.
A properly developed and implemented eCommunications Policy is a reasonable and available step that may be pivotal in avoiding liability. Certainly it is difficult to argue that all reasonable and available steps have been taken where an employer does not have an eCommunications Policy or has failed to properly implement one.
Protection of reputation and goodwill
There have been a number of recent cases involving adverse publicity for well-known companies as a result of the abuse of e-mail facilities, usually by downloading and transmitting pornography. An effective eCP can help to prevent your company's name appearing in the wrong sort of headline.
Disciplinary action
The persistent or severe abuse of workplace email and Internet facilities can lead to an employee being disciplined. Many employees are ignorant of possible sanctions and unaware that certain uses of computer facilities are not permitted.
In order to effect a dismissal, an employer must show that there is a reasonable rule, of which the employee was aware, which was broken by the employee leading to the irretrievable breakdown of the employment relationship.
An eCommunications Policy, through its development and maintenance, brings certainty to this area for both employers and employees. In circumstances that warrant dismissal, the employer will easily be able to show that it was agreed that the offence committed could result in dismissal.
"Accidental" contracts
The recently enacted Electronic Communications & Transactions Act 25 of 2002 gives full legal force and effect to electronic communications such as e-mail. A quick exchange of e-mails can constitute a signed contract and, even if an employee does not have actual authority to contract, the law of agency may apply to bind the employer in circumstances where the employee is being held out to have such authority.
Creating favourable working conditions.
Access to the Internet and e-mail has led to an explosion in harassment of co-workers and others by electronic means. E-mail is easy to write but difficult to erase or keep track of once it has been sent, and it could well form the foundation of a discrimination claim when it contains remarks or jokes related to race or sex, which one of the (eventual) recipients finds offensive. Offensive material left on screen can also contribute to the creation of an adverse working climate and leave the employer liable.
Other considerations
Other reasons for having an eCommunications Policy include enhanced control over network security and integrity, minimising the risk of being sued by employees for discrimination and avoiding liability for copyright infringement.
How real is the risk?
Very. Although there is as yet no relevant reported case law in South Africa, the majority of employers providing e-mail and Internet facilities have experienced some difficulties with employee misuse or abuse, and an increasing number of matters involving alleged misuse or abuse and subsequent disciplinary action are being brought before the labour courts.
12 Feb 2002
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - info@e-lawconsultancy.co.za
